The International Criminal Court

Ending Sudan's impunity

The court names its first two people suspected of atrocities in Darfur

IN THE village of Arawala, West Darfur, the women were lined up, stripped naked and tied to trees with their legs apart. Throughout the night, the men of the janjaweed, the Sudanese government-backed Arab militia, repeatedly raped them. One woman said she was raped by between ten and 25 men. The soldiers later burnt the village to ash, killing many of its 7,000 inhabitants and forcing the rest to flee.

In the town of Mukjar, also in West Darfur, a witness said she saw her uncle in a makeshift prison after he had been rounded up with other townsmen by the janjaweed and members of the Sudanese armed forces. He was suspended in mid-air, his arms bound to a plank in the ceiling, his legs tied wide apart over a burning stove. Some 60 others, restrained in different ways, were in the same room. All had whip marks on their bodies, and their clothes were bloodstained and torn. One had had his finger- and toenails pulled out.

It is for atrocities such as these that Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court (ICC) in The Hague, has asked the court's pre-trial chamber to issue summonses against two men: Ahmad Muhammad Harun, a former junior interior minister in the Sudanese government and head of its Darfur security desk and now, astonishingly, minister for humanitarian affairs; and Ali Muhammad Ali Abd-al-Rahman, better known by his nom de guerre, Ali Kushayb, a leader of the janjaweed. Evidence against other suspects, perhaps even more senior, is likely to be presented later.

More than 200,000 people are reckoned to have been killed and some 2.5m others driven from their homes in Sudan's westernmost province since fighting began in February 2003, when black African tribesmen took up arms, complaining of decades of neglect and discrimination by the Arab-dominated government in Khartoum. In the past month alone, some 46,000 more have fled from their villages in an attempt to escape the slaughter, rape and destruction by the janjaweed and Sudanese government forces.

Making it all stick

Mr Moreno-Ocampo's presentation on February 27th of 94 pages of evidence, meticulously compiled under very difficult circumstances over the past 20 months, provoked predictable outrage in Khartoum. “All the evidence the prosecutor referred to is lies,” said Mohamed Ali al-Mardi, Sudan's justice minister. Ever since the UN Security Council passed a resolution in March 2005 asking the ICC to investigate the situation in Darfur, Omar al-Bashir, Sudan's president, has repeatedly sworn never to hand over any Sudanese citizen indicted by the court. His own government was perfectly “able and willing” to try the perpetrators itself. Indeed, it had set up a special criminal court in 2005 to do just that. As a tribunal of last resort, the international court had no jurisdiction.

Mr Moreno-Ocampo always knew that admissibility would pose a problem: the ICC cannot prosecute people who are already being investigated or charged in another jurisdiction, for example in their home country. But after five visits to Sudan for talks with government and judicial officials, he is sure they are not investigating the same people (in regard to Mr Harun) or the same crimes (re Mr Kushayb), so his case against the pair should be admissible. It will now be up to the ICC's pre-trial chamber to decide whether he is right. It will also have to decide whether there are “reasonable grounds” to arraign the two.

There are, says Mr Moreno-Ocampo. Though his investigators could not get into Darfur, they screened some 600 potential witnesses during 70 missions to 17 countries, taking formal statements from about 100 of them. He says he has a “very strong case” demonstrating the criminal responsibility of Messrs Harun and Kushayb in relation to 51 counts of alleged crimes against humanity and war crimes, including murder, torture, persecution and mass rape carried out against Darfur's civilians in 2003 and 2004. He makes no reference to America's allegation of genocide.

Mr Moreno-Ocampo's continuing investigations cover the whole period up to the present day. He refuses to divulge whether or when other suspects may be named, saying he will go wherever the evidence leads him. For his first case, he has targeted a chief planner and a primary implementer of the worst atrocities. Their testimony could prove vital in helping him reach those responsible higher up the chain of command. Human-rights lobbies are urging him to go to the top—to Mr Bashir himself. But this would complicate an already complex situation.

Western diplomats are already worried about the impact of the ICC on efforts to get UN troops into Darfur. An agreement on a proposed hybrid UN-African Union force is not even close yet. Under the terms of the UN Security Council resolution on Darfur, Sudan is obliged to co-operate with the court. If it refuses, it could face sanctions or other measures. Meanwhile, the raping and killing in Darfur goes on.